Watershed advocates sue DEC to prevent fracking in forests

Illustration and caption of gas drilling infrastructure from the DEC's draft "Strategic Plan for State Forest Management," August 27, 2010.

The Croton Watershed Clean Water Coalition is suing the state Department of Environmental Conservation in an effort to prevent hydraulic fracturing in state forests. In a lawsuit filed last week, the group argues that fracking in forests would violate the New York state constitution and that the DEC's recently-released strategic forest plan breaks environmental review laws.

The DEC hasn't officially given the green light to fracking in state forests, or anywhere else. But the agency's Strategic Plan for Forest Management leaves the door open for it. 

The DEC's Division of Forestry released a draft version of the Strategic Plan for State Forest Management last fall. The draft plan stated that the DEC was "inclined to consider natural gas developments on state forests" because "it is a cleaner burning energy alternative to other fossil fuels such as coal and oil."

After being barraged by thousands of public comments, the DEC released its final plan in December. The language about being "inclined to consider" hydraulic fracturing had been quietly removed, along with any discussion of natural gas being cleaner than other fossil fuels.

But the plan still leaves room for hydraulic fracturing, stating that the decision will be made after the DEC's Division of Mineral Resources and the federal Environmental Protection Agency finish their ongoing reviews of fracking.

The CWCWC lawsuit, which was filed last Thursday in Ulster County Supreme Court, argues that the DEC had violated the New York State Environmental Quality Review Act (SEQRA) when it finished its forest plan without taking "a hard look" at fracking. (You can read the filing in full below.)

According to the CWCWC's lawyer, James Bacon, the SEQRA requires that the DEC conduct a full review of the impact of fracking before issuing a final forest plan.

"Under SEQRA, you can't have a final action on something until you look at all the elements of what you're doing," he told the Watershed Post today. "By saying 'We're not going to look at it,' they delegated it to somebody else. We're saying that's a violation."

The CWCWC is asking the court to annul the entire forest plan. In addition to violating the SEQRA, the CWCWC argues, hydraulic fracturing on state forest lands:

is contrary to the enabling legislation authorizing the purchase of lands for State Forests and is inconsistent with the responsible stewardship of State Forests, sustainability and policies of New York State as set forth in the State Constitution, Environmental Conservation Law (ECL), and Common Law Public Trust Doctrine.

The DEC is likely to respond that the ongoing analysis of fracking by its minerals wing is enough to satisfy SEQRA. In fact, it already said as much in the final version of the forest plan, in a "response to public comments" section:

The environmental analysis regarding the use of high‐volume hydraulic fracturing is being conducted under the Supplemental GEIS for Hydraulic Fracturing.  The Strategic Plan for State Forest Management is not intended to serve as the environmental review for this activity. 

Croton Watershed Clean Water Coalition v. NYS Department of Conservation